Parental rights, best interests and significant harms: Medical decision-making on behalf of children post – Great Ormond Street Hospital v Yates [2017]

Dr Imogen Goold1

1Associate Professor and Admissions Co-Ordinator, Faculty of Law, University of Oxford, Fellow and Tutor in Law, St Anne’s College

Who should have the ultimate say over a child’s medical treatment? Gard and Yates argued that in cases where there is a choice of treatments, parents should be the final arbiter of a child’s medical care unless their decision puts the child at risk of significant harm. Both the Court of Appeal and the Supreme Court rejected this argument, affirming their authority to intervene in any parental decisions where a child’s welfare is affected and reiterating that the decision must be taken in the child’s best interests. We argue that they (like many courts before them) wrongly elided the question of when the court should intervene with that of how an intervening court should make decisions, (namely in the child’s best interests). We argue that the courts need to offer more justification for the current low threshold for intervention and consider whether some medical decisions should be reserved to parents. We argue for a move to a harm threshold for judicial intervention.